2-6-2019 Polk County Circuit Court ruling permitting a Forensic Examination of Smartphone could provide valuable information as we seek justice for our client; a pedestrian struck by a commercial vehicle.
Carrying portable electronic devices, or “smart phones” is now as common as carrying your wallet and keys. With a variety of features including phone numbers, emails, texts, and applications, a person’s phone now is a mobile file cabinet with all sorts of information readily available to its owner for use. What is a benefit can also be a curse. Use of a phone while operating a motor vehicle, even for the briefest moment, can have catastrophic consequences. With the prevalence of new technology comes a need on the part of lawyers to be knowledgeable in gaining access to and making use of electronically stored information.
Our firm presently represents a pedestrian who was struck by a truck and suffered significant and permanent bodily injuries. As a part of the discovery process, we requested access to the driver’s cell phone to ascertain whether it was in use at the time of the accident. The driver, through his counsel, interposed a variety of objections including ones raising constitutional privacy concerns. Our firm recently explained to the court how the law should evolve to permit access to ascertain this important electronic evidence over privacy objections, and we secured an important court ruling which required the driver to produce his phone for inspection to determine whether it was being used at the time of the event. We argued that every use of a phone leaves an electronic footprint, and an act as simple as clicking an app to glance at a headline or check a sport score is a distraction while operating a motor vehicle. The court agreed with our argument, concluding the need for important information that may show whether the driver was distracted at the time of the accident outweighed any privacy concerns raised. The court adopted our argument that allowed for access to important electronic data while at the same time establishing guidelines for protection against dissemination of confidential or sensitive personal information.
Rapid technological change inevitably outpaces the sometimes glacial pace of the law. There are few reported decisions in Florida on the scope of permissible electronic discovery. Our team at Robert N. Pelier, P.A. stays abreast of the latest technology developments and, where appropriate, we pursue use of the information generated by technology to advance our clients’ causes.